Originality and Copyright Laws

By Grygor Scott

Copyright laws protect a wide range of works, including novels, songs, photographs, movies and computer programs. A copyright holder can file an infringement lawsuit against anyone who uses his work without permission. The issue of originality usually arises in an infringement lawsuit when the defendant claims that the copyright is invalid because the work is not original.

Copyright laws protect a wide range of works, including novels, songs, photographs, movies and computer programs. A copyright holder can file an infringement lawsuit against anyone who uses his work without permission. The issue of originality usually arises in an infringement lawsuit when the defendant claims that the copyright is invalid because the work is not original.

Statutory Requirements

The Copyright Act of 1976 requires copyrighted works to satisfy two basic requirements: They must be “original works of authorship" and be "fixed in any tangible medium of expression.” The fixation requirement is usually straightforward. A work is fixed when a person can perceive it directly or with the aid of a machine or device. Typing, making a recording, or saving a work on a computer disk are common ways to satisfy the fixation requirement. The originality requirement is more complicated.

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Originality

Federal courts have established a relatively low threshold for originality. In general, originality depends on two factors: whether the author created the work independently and whether the work possesses some degree of creativity. Federal courts have upheld copyrights for works that have displayed minimal creativity. A work satisfies the independent authorship requirement if the author has not copied or paraphrased another work. In theory, a writer could type out "Moby-Dick" word-for-word independently of Herman Melville’s novel and secure a copyright for the work. In practice, the writer would have trouble establishing that he created this exact replication on his own.

Unoriginal Works

Federal courts have ruled that a variety of works do not qualify for copyright protection because they do not contain original authorship. In most cases, these works consisted entirely of raw data and information available to everyone. Examples of unoriginal works include simple rulers, basic calendars, telephone directories and lists taken from public sources.

The Sweat Theory

Some federal courts have ruled that works containing publicly available factual information are copyrightable if the author has used sufficient intellectual labor -- or "sweat of the brow," as one court wrote -- in creating the work. For example, directories, compilations and maps may be copyrighted if the work’s creator obtains the information through his own efforts. Thus, a cartographer can copyright a map of California that is based on his own research. If the mapmaker has merely copied an existing California map, he cannot claim a valid copyright for his map.

Derivative Works

Derivative works are based on one or more works that already exist. A painting based on a photograph and a collection of short stories translated from French to English are examples of derivative works. The owner of a a derivative work can copyright it if it meets one of two standards: The new work must either contain a substantial amount of new material or differ sufficiently from the existing work. Making minor changes to an existing work will not satisfy the originality requirement. Adding new text or photographs to the existing work or expressing the existing work in a different form, such as choreographing a song, will fulfill the originality requirement so the derivative work will qualify for copyright protection. A copyright for a derivative work covers only the new materials it contains. Its copyright does not protect the pre-existing material or lengthen the length of its copyright.

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How to Copyright a Jingle

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How Do Copyrights Work?

A copyright is an intangible property right that an artist or creator gains in an original work. The copyright represents the law's recognition that the creator should be the one to initially profit from the sale, display, performance or duplication of the work for a standard period of time as a way to encourage creators to continue creating. There is an aspect of copyright law that operates automatically to protect the creator of an original work and other protections that are available under the provisions of the federal Copyright Act.

How to Get a Play Copyrighted

A play qualifies for copyright protection, typically as a literary work and performing art. However, several broad copyright categories apply to plays, such as literary work, dramatic work, choreographed work, musical compositions, sound recordings, motion pictures, pictorial, graphic and sculptural work and even architectural work. The playwright automatically secures basic copyright in the script once it's fixed in a tangible form. These include paper manuscripts, electronic document files, recorded live performances and published short or full length plays. A playwright should also apply for federal copyright registration as soon as possible. This optional registration provides many benefits, including exclusive ownership and publication rights of a play.

How to Know if Internet Images Are Copyrighted

Potentially all internet images qualify for copyright protection. The instant the image is created in a digital form, it qualifies for "common law" copyrights. Common law copyrights come from the old English system of law. Under common law, original works of authorship fixed in a tangible form automatically secure copyright protection. Tangible forms for internet images include digital files, emails and webpages. Therefore, all original internet images in a digital format are copyrighted; the owner is not required to apply for federal copyright registration. Federal registration is optional. The public may still have be able to use the copyrighted images if fair use applies. The fair use doctrine allows others to use the copyrighted work, under restricted conditions and not for profit.

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